NORM PATTIS: Identifying genetic markers will not stop crime

Discussion turned, in the wake of the Newtown killings, to better mental health services. If we could simply identify homicidal rage before it erupted, we could save lives. Don't advances in biology and neurosciences permit us, finally, to say with some degree of certainty, just what we are and why we do the things we do?

Not by a long shot. Although we are on the cusp of a potentially transforming understanding of the relationship between minds and bodies, we're hardly better off than we were in Plato's day when it comes to understanding what makes the human psyche tick.

It all starts with the mysterious relationship between minds and bodies. We've decoded the genome, the sum of our genetic parts. Today, scientists are busily decoding the genetic structure of Adam Lanza. Will a quirky mutation, or an unusual sequence in genes, explain why he snapped and killed 27 people, including 20 children, in Newtown? Is there a mass murderer gene?

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I doubt it, and, even if there were, finding it would prove a useless tool.

Put in its simplest turns, we don't know how to cross the great chasm between biological structure and function, and human volition. Study my brain all you like. Map its contours, watch each neuron fire its seemingly infinite set of impulses across the billions of synapses that make me who I am. Do all that and you will still not capture my mind, my sense of self, and the desires, habits, indeed, the very will that define me. Philosophy, and its weaker cousin, the law, are still trapped in a crippling sense of dualism: even if you believe that matter is all there is, you still cannot give a complete account of mind.

Historians of science speak of paradigm shifts, great changes in the very manner in which we conceive the nature of reality. The next great paradigm shift will go the Galileo, the Newtown, the Einstein, who will better conceive, better explain, how brains create minds. We're not there yet. We're not even close. Consider the chemistry of a mood: what equation defines the comfort I experience when I hear my wife's familiar footfall on the stairs in the morning? Try as we might, we can only understand the moment that has passed; the future always looks as though it is something we can choose. We're still debating free-will versus determinism, although science suggests things aren't really that simple.

This is especially true where law and mental health intersect.

The truth is the law is a dismal failure when it comes to mental health. It gets most extreme cases right, but fails at almost everything else. Consider the following: You can be competent to face criminal prosecution but legally insane. It's all a matter of what standards you apply.

A person is competent to stand trial so long as they understand the nature of the charges against them and can assist, however ineptly, in their own defense. My office recently made a competency motion in the case of a client whose behavior was patently self-destructive. The client's examination rated him competent: He knew our names. He knew what the role of the various players were in the criminal proceeding. He knew what the accusations against him alleged. He was more than a potted plant.

But is he sane? The law distinguishes between cognitive and behavioral insanity. You are cognitively insane if you don't have any idea what you are doing. The object you stab with a knife is not, as you suspect, a bag of potatoes -- it is your next door neighbor. Hallucinations typify cognitive insanity.

The behavioral variant of insanity is more nuanced. You are insane if you simply cannot control your conduct to conform to the requirements of law. It's more than a mere lack of self-control, although just how much more is hard to say. Judges and juries almost never find folks not guilty by reason of insanity on this ground. After all, don't we all lose control from time to time? Who hasn't said: "The devil made me do it"?

A person can be competent to stand trial but helpless to control his conduct to the requirements of the law -- you can be competent but insane, as crazy as that sounds.

But insanity and competency are the easy cases, I say. The courts are filled each day with defendants. Few are incompetent, and almost no one is deemed insane. But many of the folks facing charges have committed acts of violence against themselves, in the form of narcotics addiction; violence against others in the form of murder, assault and rape; or transgressions against property. Not many of these folks engage in the cool cost-benefit analysis of rational actors bargaining in the law's shadows. Most, I suspect, labor under character disorders of one sort or another, some are merely depressed, others are warped by narcissism, sociopathy, or borderline disorders. The American Psychiatric Association periodically publishes a manual of all the ways a person can be mentally ill. It's a daunting array.

The law fails utterly to account for personality disorders. They almost never amount to a defense; they are at best mitigating factors at sentencing, unless the crime is shocking enough, in which case revulsion and anger eliminate the psychiatrist's subtle distinctions.

Expecting the law to identify those about to snap is a pipe dream. There is no such thing as prophylactic criminal justice. In most cases, most of the time, the law refuses to address the mental health needs of those charged with crimes, preferring the comfortable, if quaint, assumption that we're all rational actors making intelligent decisions about our life's course.

The chilling truth about the criminal law is that any one of us is capable of crime. Freud knew this. In his Civilization and Its Discontents, written a century ago, he wrote of the dark, aggressive instincts that fuel us all in ways we scarcely care to admit. The hard and unforgiving work of civilization channels, or sublimates, these instincts to public use. But anyone can fail; indeed, most of us do in small, forgivable ways all the time.

We are fascinated with evil not because it is foreign, but because it defines us, each and everyone. All the mental health services in the world will not eliminate crime, and it will not drive evil from the world. We have seen the devil, and he us, each of us.